219 F.3d 1147 (10th Cir.

2000)
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
TRIPLE C MAINTENANCE, INC., Respondent,
and
INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS
AND ASBESTOS WORKERS LOCAL UNION 64 ("LOCAL 64"). Intervenor.

No. 99-9500
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
July 10, 2000

ON PETITION TO ENFORCE ORDER OF THE NATIONAL LABOR

RELATIONS BOARD (Case No. 17-CA-19243)[Copyrighted Material
Omitted][Copyrighted Material Omitted]
Robert J. Englehart, Attorney (Frederick C. Havard, Supervisory
Attorney; Frederick L. Feinstein, General Counsel; Linda Sher, Associate
General Counsel; John D. Burgoyne, Acting Deputy Associate General
Counsel, with him on the brief), National Labor Relations Board,
Washington, D.C., for Petitioner.
Stephen L. Andrew (D. Kevin Ikenberry with him on the briefs) of
Stephen L. Andrew & Associates, Tulsa, Oklahoma, for Respondent.
Robert D. Kurnick of Sherman, Dunn, Cohen, Leifer & Yellig, P.C.,
Washington, D.C. (Walter C. Brauer, III, of Brauer, Buescher, Valentine,
Goldhammer & Kelman, Denver, Colorado, with him on the brief), for
Intervenor.
Before HENRY, McKAY, and ANDERSON, Circuit Judges.
McKAY, Circuit Judge.

The National Labor Relations Board petitions for enforcement of the Decision
and Order it issued to Respondent Triple C Maintenance, Inc., on October 30,
1998, finding that Triple C is not free to attack a collective bargaining
agreement on the basis of a claim of lack of majority support after more than

six months had elapsed from the time the agreement was entered into and that
Triple C violated 8(a)(1) and (5) of the National Labor Relations Act [NLRA or
Act]. International Association of Heat and Frost Insulators and Asbestos
Workers Local Union 64 [Union] intervenes to support the Board's petition. We
exercise jurisdiction under 29 U.S.C. 160(e).
I.
2

Triple C is an Oklahoma company engaged primarily in the installation of

insulation products in the greater Tulsa, Oklahoma, area. Triple C is owned by
Chester Cline and his daughter-in-law, Lori Cline, who is married to Carlton
Cline. On June 17, 1993, Triple C entered into a collective bargaining
agreement with the Union, which was patterned after a contract between the
Union and a multiemployer bargaining association, the Master Insulators
Association of Tulsa. The contract was effective for one month, until July 15,
1993. It included a recognition clause stating that Triple C recognized the
Union "as the sole and exclusive bargaining agent" for the unit employees, the
unit was "appropriate for bargaining within the meaning of [] 9(a)," and "this
recognition [was] predicated on a clear showing of majority support for [the
Union] indicated by [the] bargaining unit employees." R., Vol. II, Ex. GC3 at 2
(Art. II, 2). When Triple C entered into the agreement with the Union in June
1993, its only employee was Carlton Cline. Although he signed an
authorization card, Carlton was not a statutory employee for purposes of 9(a)
because he was the husband and son of the owners. See 29 U.S.C. 152(3)
(excluding from the definition of employee "any individual employed by his
parent or spouse").

On July 16, 1993, Triple C entered into a contract with the Union for the period
from July 16, 1993, to June 15, 1994, which contained the same recognition
clause language as the previous month-long agreement. In September 1993,
Triple C hired two employees, both of whom had signed authorization cards
designating the Union as their exclusive representative. Triple C entered into
subsequent contracts in 1994 and again in 1995, both of which contained the
same recognition language as the previous contracts.

In April 1996, Triple C advised the Union that upon the expiration of the 19951996 agreement it might choose not to renegotiate with the Union. After
unsuccessfully attempting to negotiate a six-month rather than a year-long
contract, Triple C did not sign the 1996-1997 contract. However, it is
uncontested that Triple C operated for several months as though it were still
applying the expired contract. It continued to make monthly contributions to the
Union benefit funds until December 1996, and it made three requests to use the

Union's wage equality fund during the same time period. On November 24,
1996, Triple C notified the Union that it had laid off its employees, and the
Union subsequently advised Triple C that it would withhold wage equality
payments until Triple C signed the 1996-1997 contract. In April 1997, Triple C
notified the Union that no contract existed between them for the 1996-1997
period, that it would not sign a new contract for 1997-1998, and that it no
longer recognized the Union. See R., Vol. II, Ex. GC18; Vol. III, Doc. 1 at 5.
5

The Union filed unfair labor practice charges against Triple C, alleging that it
improperly refused to sign the 1996-1997 agreement and negotiate a new
agreement, failed to adhere to the terms of the 1996-1997 collective bargaining
agreement, and improperly withdrew recognition from the Union. Triple C
responded by arguing that because its relationship with the Union was
governed by 8(f) it was entitled to repudiate that relationship when the contract
expired. The Union argued that the relationship between the parties was
governed by 9(a) and that Triple C is barred from raising the 8(f) defense under
10(b) of the NLRA.

An administrative law judge tried the case and determined that Triple C was
"precluded from attacking the purported Section 9(a) contract by the limitations
period set forth in Section 10(b) of the Act." Id., Vol. III, Doc. 1 at 6. The
Board affirmed the decision of the administrative law judge with some
modifications. While they agreed that the recognition clause of the initial
collective bargaining agreement showed that the Union had majority status,
Board Members Fox and Liebman found that Triple C was "not free to attack
the agreement on the basis of a claim of lack of majority [status] after more
than [six] months had elapsed." Triple C Maintenance, Inc., 327 N.L.R.B. No.
15, 1998 WL 799280, at *1 n.1 (1998). Board Member Hurtgen, on the other
hand, stated that Triple C could not have entered into a 9(a) relationship in June
1993 because it had no employees at that time, but when Triple C signed the
new agreement in 1994, which contained the same 9(a) recognition language, it
had employees and therefore recognized the Union as the exclusive
representative of those employees under 9(a). See id. This appeal followed.

We review the Board's application of the law to particular facts under the
substantial evidence standard. Under 10(e) of the NLRA, 29 U.S.C. 160(e), the
Board's factual findings are conclusive if they are supported by substantial
evidence in the record as a whole. See Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951); NLRB v. American Can Co., 658 F.2d 746, 753 (10th
Cir. 1981). To the extent that the Board's resolution of an issue involves the
application of a rule that "'fill[s] the interstices of the broad statutory
provisions,'" that rule must be accorded "considerable deference." NLRB v.

Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 (1990) (citation omitted).
II.
8

There are two issues controlling our decision: (1) whether the relationship
between the union and the employer was governed by 8(f) or 9(a), and (2)
whether 10(b) precludes the employer from attacking the formation of a 9(a)
relationship. One approach a court might take in addressing these issues would
be to determine first whether an employer is precluded from attacking the
purported 9(a) agreement by the limitations period in 10(b). If the employer
were so precluded, a court could refuse to examine whether the agreement
satisfies the requirements of 9(a) recognition. However, because the party
asserting the existence of a 9(a) relationship has the burden to prove its
existence, we believe the proper approach is first to examine whether the
bargaining agreement, on its face, demonstrates that the parties intended to
form a 9(a) relationship as opposed to one governed by 8(f). Then, if it is clear
from the agreement that a 9(a) relationship was intended, which means that the
parties had sufficient notice that 9(a) governs their agreement, we examine
whether a challenge to the 9(a) status, and its presumption of majority support,
is reasonably restricted by a period of limitations under 10(b) or otherwise.
A. The 9(a) 8(f) Distinction

The dispute between 8(f) or 9(a) governance finds its origins in the NLRA
which made a distinction between the multiemployer bargaining relationships it
recognizes. Section 9(a) of the Act, 29 U.S.C. 159(a), provides that when a
majority of employees in a unit appropriate for collective bargaining designates
a labor union to represent it, the union becomes the exclusive representative for
collective bargaining purposes. Under 9(a) an employer may not unilaterally
repudiate a contract and has a duty to bargain in good faith after the contract
expires. See James Luterbach Constr. Co., 315 N.L.R.B. 976, 979 (1994). This
is because the union that has attained the status of a 9(a) bargaining
representative enjoys a presumption of majority status for the duration of a
contract or for a reasonable period. See Auciello Iron Works, Inc. v. NLRB,
517 U.S. 781, 786 (1996). When a contract or reasonable period expires, the
employer may rebut the presumption of majority status by showing either that
the union does not in fact enjoy majority support or that the employer has a
"good-faith reasonable" doubt of the union's continued majority status. See
Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359, 361 (1998).

10

On the other hand, 8(f) of the Act, 29 U.S.C. 158(f), allows employers engaged

primarily in the building and construction industry to enter into pre-hire

agreements containing union security clauses whether or not the union
represents a majority of the employer's employees. Under an 8(f) contract, the
union enjoys no presumption of majority status and either party may repudiate
the relationship upon the expiration of the contract.1 See Luterbach, 315
N.L.R.B. at 978; see also Sheet Metal Workers' Internat'l Ass'n Local 19 v.
Herre Bros., Inc., 201 F.3d 231, 239 (3d Cir. 1999).
11

A relationship between a union and a construction industry employer is

presumed to be governed by 8(f), and "the party asserting the existence of a
9(a) relationship [has the burden] to prove it." John Deklewa & Sons, Inc., 282
N.L.R.B. 1375, 1385 n.41 (1987), enforced sub nom. International Ass'n of
Bridge, Structural & Ornamental Iron Workers v. NLRB, 843 F.2d 770 (3d Cir.
1988); accord NLRB v. Viola Indus.-Elevator Div., Inc., 979 F.2d 1384, 139497 (10th Cir. 1992); see also Casale Indus., Inc., 311 N.L.R.B. 951, 952 (1993).
A union can prove a 9(a) relationship and overcome the presumption of an 8(f)
relationship in two ways: "(1) through a Board-certified election, or (2) through
an employer's voluntary grant of recognition of the union as the employees'
exclusive majority bargaining agent." NLRB v. Goodless Elec. Co., 124 F.3d
322, 328 (1st Cir. 1997); see also Deklewa, 282 N.L.R.B. at 1387 n.53. The
Board has explained that a party attempting to satisfy the voluntary recognition
option may overcome the 8(f) presumption by showing three things: (1) the
union's unequivocal demand for recognition as a 9(a) representative; (2) the
employer's unequivocal and voluntary grant of such recognition; and (3) a
contemporaneous showing of majority support. See Goodless Elec. Co., 321
N.L.R.B. 64, 65-66 (1996); rev'd on other grounds, 124 F.3d at 328; Golden
West Elec., 307 N.L.R.B. 1494, 1495 (1992); J & R Tile, Inc., 291 N.L.R.B.
1034, 1036 & n.11 (1988).

12

The threshold issue in this case is what kind of proof is necessary to satisfy the
third prong of the voluntary recognition option. The Board and the Union assert
that a contemporaneous showing of majority support may be established
without extrinsic proof of majority status. Triple C argues that a 9(a)
relationship was not established because the voluntary recognition was not
based on actual objective proof of majority support. In fact, Triple C contends
that a 9(a) relationship could not have been formed because, at the time it
signed the contract with the Union in 1993, the company had only one
employee who did not qualify as an employee for purposes of 9(a), thus no
majority support existed. We are not persuaded by Triple C's arguments.

13

Because an 8(f) agreement is available to the construction industry, a union's

demand to execute a collective bargaining agreement with an employer is

inherently ambiguous. See J & R Tile, 291 N.L.R.B. at 1036 & n.11. As a
result, instead of focusing on the third requirement of a contemporaneous
showing of majority support, the Board seems to have given much attention to
the first two requirements of the three prong standard for voluntary recognition,
i.e., whether the union sought and the employer extended recognition under
9(a). See, e.g., id. at 1037 (holding that "the evidence [was] insufficient to
establish that the Employer . . . entered into a 9(a) . . . relationship with the
Union" because "there [was] no evidence indicating that the Union sought, and
thereafter was granted, recognition as the 9(a) representative of the Employer's
employees"); see also Triple A Fire Protection, Inc., 312 N.L.R.B. 1088, 1088
(1993) (emphasizing importance of recognition formsigned by the
employerwhich "voluntarily and unequivocally granted recognition to the
Union as [the] 9(a) representative" and which acknowledged proof of union's
majority status), enforced, 136 F.3d 727 (11th Cir. 1998), cert. denied, 525 U.S.
1067 (1999). The Board has held, for example, that "to establish voluntary
recognition pursuant to Section 9(a) . . . there must be evidence that the union
unequivocally demanded recognition as the employees' 9(a) representative and
that the employer unequivocally accepted it as such." J & R Tile, 291 N.L.R.B.
at 1036. "[T]he Board will require positive evidence that the union sought and
the employer extended recognition to a union as the 9(a) representative of its
employees before concluding that the relationship between the parties is 9(a)
and not 8(f)." Id. It is clear from these principles that, in order to satisfy the
voluntary recognition standard, the Board requires rigorous compliance with its
first two prongs.
14

The Board, however, has interpreted the contemporaneous showing

requirement with greater latitude; it can be met in a number of ways. Board
precedent indicates that majority support may be contemporaneously shown by
actual objective proof, such as the presentation of employee authorization cards
to an employer, see Hayman Elec., Inc., 314 N.L.R.B. 879, 886 (1994), or an
"employer-conducted poll prior to initial recognition," Precision Striping, Inc.,
284 N.L.R.B. 1110, 1112 n.6 (1987). At the same time, a contemporaneous
showing of majority support occurs where, external to the contract, an employer
admits or acknowledges that the union enjoyed majority support at the time that
it demanded such recognition. See Golden West Elec., 307 N.L.R.B. at 1495
(holding as sufficient proof of a 9(a) relationship the terms of the voluntary
recognition agreement signed by the employer and the employer's testimony
that it "knew at the time it signed the [recognition] agreement that . . . the
Union was seeking recognition as the unit employees' majority representative
and that the Employer was granting the Union recognition as such").

15

Not all Board decisions rely on some sort of extrinsic evidence to satisfy the

contemporaneous showing requirement and prove the existence of a 9(a)

relationship. To the contrary, several Board decisions make clear that the
contemporaneous showing requirement may be satisfied by contractual
language indicating that a union has offered to show its majority status and that
the employer acknowledges and is satisfied by that offer. For example, in
Decorative Floors, Inc., 315 N.L.R.B. 188, 188 (1994), the employer signed a
recognition agreement which unequivocally demanded and granted 9(a)
recognition, outlined the union's offer to establish majority status by allowing
the employer to examine authorizations cards, and explicitly stated that the
employer was satisfied that the union represented a majority of its employees.
The Board held that "the contractual language, standing alone, [was] sufficient
to establish that [a 9(a)] relationship existed." Id. at 189. The Board again held
that a 9(a) relationship was established where the employer executed a
document in which it acknowledged that it had verified the union's majority
status "on the basis of objective and reliable information," but where no other
independent evidence of majority status existed in the record. MFP Fire
Protection, Inc., 318 N.L.R.B. 840, 841-42 (1995), enforced on other grounds,
101 F.3d 1341, 1343 (10th Cir. 1996); cf. American Automatic Sprinkler Sys.,
Inc. v. NLRB, 163 F.3d 209, 221-22 (4th Cir. 1998) (noting that Board
incorrectly concluded that the union had attained 9(a) status because the
language in contract did not evidence an unequivocal demand for or grant of
voluntary recognition nor a contemporaneous showing of majority support),
cert. denied, U.S. , 120 S. Ct. 65 (1999);2 Goodless Elec., 124 F.3d at 329
(stating that Board precedent provides that "the union's demand for and the
employer's grant of [ 9(a)] recognition must be predicated on at least an
unchallenged claim, if not an actual showing, of contemporaneous majority
support"); James Julian, Inc., 310 N.L.R.B. 1247, 1253-54 (1993) (holding that
a 9(a) relationship was not established because, unlike prior Board decisions
including Golden West Elec., the recognition agreements did not contain any
acknowledgment of the union's majority status and there was no evidence that
the parties unequivocally intended the agreements to create a 9(a) relationship).
Accordingly, in the cases in which the Board determined that a 9(a) relationship
existed without independent proof of majority support, the critical component is
that the agreements either describe a contemporaneous showing of majority
status or have the employer acknowledge the fact that majority status was
shown.
16

In accordance with Board precedent, the Third Circuit recently held that the
recitations of a "collective bargaining agreement constitute[d] uncontroverted
proof that the parties were governed by 9(a)." Sheet Metal Workers' Internat'l
Ass'n Local 19 v. Herre Bros., Inc., 201 F.3d 231, 242 (3d Cir. 1999). The court
determined that the "language conclusively establishes a 9(a) relationship"

because it "unequivocally states that the employer recognizes the Union as the
exclusive majority representative[,] . . . [and it] recites that the Union submitted
proof and that the employer is satisfied that the union represents a majority of
its employees based on that proof." Id. We adopt the reasoning of the Third
Circuit on precisely this point. We hold that the language of a bargaining
agreement itself may satisfy the requirement of a contemporaneous showing of
majority support and overcome the 8(f) presumption where it unequivocally
demonstrates that the parties intended to be governed by 9(a). The agreement
must, at the very least, show that the union demands 9(a) recognition, recite
that the employer recognizes the union as the exclusive representative of an
appropriate unit of employees based on some showing of majority support, and
demonstrate that the employer acknowledges and accepts the showing of
majority support for the union.
17

The collective bargaining agreements entered into by Triple C and the Union in
1993, 1994, and 1995 meet this standard. The initial bargaining agreement, as
well as the subsequent agreements, unequivocally states that Triple C
"recognize[s] [the Union] as the sole and exclusive bargaining agent for . . . a
unit [of employees] appropriate for bargaining within the meaning of Section
9(a)." R., Vol. II, Ex. GC3 at 2. Significantly, the agreement also represents
that "[t]he Employer agrees that this recognition is predicated on a clear
showing of majority support for [the Union] indicated by bargaining unit
employees." Id. While the agreement does not state that the Union
unequivocally demanded recognition, such a demand is clearly implied by the
content of the entire recognition clause and by the fact that the Union presented
Triple C with the collective bargaining agreement. See Sheet Metal Workers',
201 F.3d at 242; cf. Stanford Realty Assoc., Inc., 306 N.L.R.B. 1061, 1061 n.2
(1992) (determining, in non-construction industry context, that the union's
"requests [of employer] to sign a contract subsumed a demand for
recognition"). In addition, although the above contract language "conclusively
gives notice that a 9(a) relationship is intended" even without reciting 9(a),
Sheet Metal Workers', 201 F.3d at 242, the reference to the statutory section is
particularly helpful in this case specifically and in these types of agreements
generally.3 In other words, because the agreement actually mentions 9(a),
Triple C's argument that it did not have notice that 9(a) governed its
relationship with the Union rings rather hollow. Further, we see no analytical
difference between the case where a contract states that the union offered
authorization cards to the employer as proof of majority support but the
employer waived the opportunity to see the cards and the case where the
contract signed by the employer and the union recites both that there was a
clear showing of majority support for the union and that the employer accepted
that proof and acknowledged majority status. Cf. Decorative Floors, 315

N.L.R.B. at 188-89.
18

The Board's conclusion that the contract language satisfies all the requirements
necessary to rebut the 8(f) presumption, including the requirement of a
contemporaneous showing of majority support, is supported by substantial
evidence. We hold that the language recited in the collective bargaining
agreements in this case "constitutes uncontroverted proof that the parties were
governed by 9(a)."4 Sheet Metal Workers', 201 F.3d at 842. That said, the
question remains how 10(b) affects the claims made by Triple C in this case.
B. The Time Limitation

19

Triple C contends that the Board improperly applied the six-month period of
limitations set forth in 10(b) of the NLRA to preclude Triple C's attack on the
majority status of the Union at the time the parties entered into the collective
bargaining agreement. The Board and Union argue that the Board's application
of a rule "limiting the circumstances in which a construction industry employer
that grants Section 9(a) recognition to a union can subsequently challenge the
union's majority status" is rational and should be upheld. Intervenor's Br. at 24;
see Petitioner's Br. at 25-26.

20

Strictly speaking, 10(b) requires that challenges to unfair labor practices must
be made within six months after the commission of the alleged unfair labor
practice.5 See 29 U.S.C. 160(b); Local Lodge No. 1424 (Bryan Mfg.) v. NLRB,
362 U.S. 411, 419 (1960). Accordingly, the provision precludes an employer
who fails to object to the union's majority status within six months after a
collective bargaining agreement is executed from attacking the lawfulness of
the agreement on that basis thereafter. While the literal language of 10(b) refers
only to the issuance of complaints, the Board and courts have used the
reasoning of Bryan Manufacturing to extend the time limitation to prevent a
defense to an unfair labor charge based exclusively on conduct which occurred
in the pre-10(b) period and which would be barred under 10(b) if it were
alleged as a complaint. See, e.g., Viola Indus., 979 F.2d at 1387; NLRB v.
Tragniew, Inc., 470 F.2d 669, 673 (9th Cir. 1972); NLRB v. District 30, United
Mine Workers of Am., 422 F.2d 115, 122 (6th Cir. 1969); Sewell-Allen Big
Star, Inc, 294 N.L.R.B. 312, 313 (1989), enforced, 943 F.2d 52 (6th Cir. 1991).

21

The overriding purpose of the six-month statute of limitations is "to stabilize

existing [collective] bargaining relationships" by preventing lawsuits long after
an unfair labor practice has occurred. Bryan Mfg., 362 U.S. at 419; see also
Auciello, 517 U.S. at 785 ("The object of the . . . Act is industrial peace and

stability, fostered by collective-bargaining agreements providing for the orderly

resolution of labor disputes between workers and employees."). Specifically,
10(b) was enacted "to bar litigation over past events 'after records have been
destroyed, witnesses have gone elsewhere, and recollections of the events in
question have become dim and confused.'" Bryan Mfg., 362 U.S. at 419
(citation omitted).
22

In Bryan Manufacturing, the union committed an unfair labor practice by

entering into a collective bargaining agreement that contained a union security
clause at a time when the union did not represent a majority of the employees.
See id. at 412-13. The agreement's union security clause required employees to
join the union within forty-five days. More than six months after execution of
the collective bargaining agreement, employees filed unfair labor practice
charges challenging the continued enforcement of the union security clause.
See id. at 414. The Supreme Court held that the charges were time-barred by
10(b). See id. at 415. It rejected the notion that the ongoing enforcement of the
agreement was a continuing violation, because "the entire foundation of the
unfair labor practice charged was the Union's time-barred lack of majority
status when the original collective bargaining agreement was signed." Id. at
417. The Court reasoned that enforcement of the union security clause itself
was permissible and that the charges were based on a time-barred occurrence,
i.e., the execution of the collective bargaining agreement with a security clause
at a time when the union did not have majority status. See id. at 417-19. The
Court refused to vitiate the policies behind the limitations period by converting
enforcement of a collective bargaining agreement, perfectly lawful on its face,
to an unfair labor practice by reference to an event that, because of a time
limitation, could not be the subject of an unfair labor practice complaint. See id.
at 419.

23

Although 10(b) was promulgated in the context of the non-construction

industry where minority recognition is unlawful, the Board and several courts
of appeals have extended it or a similar limitations period to the construction
industry. For example, in Casale Industries, 311 N.L.R.B. at 952-53, the Board
determined that, while the parties clearly intended a 9(a) relationship, it was
unclear whether a 9(a) relationship was successfully created because a privately
conducted election did not adequately show that the union had majority
support. However, the Board refused to allow the employer to challenge the
union's majority status at the time of recognition because more than six months
had passed since that recognition. The Board stated that "if a construction
industry employer extends [] 9(a) recognition to a union, and [six] months
elapse without a charge or petition, the Board should not entertain a claim that
majority status was lacking at the time of recognition." Id. at 953. The Board

reasoned that, because unions should not have less favored status with
construction industry employers than with non-construction employers, the
10(b) six-month time limitation should apply to construction cases. See id. In
short, the Board's rationale was to avoid disparity between the construction and
non-construction industries.
24

In addition to its decision in Casale Industries, the Board has applied the sixmonth limitations period in two other cases involving construction industry
employers. In Triple A Fire Protection, 312 N.L.R.B. at 1089, the Board held
that the six-month limitations period precluded the employer's attempt to
challenge the union's showing of majority status approximately four years after
the employer signed a contract recognizing a 9(a) relationship. Because the
parties intended to establish a bargaining relationship under 9(a) but waited four
years to object, the Board concluded that it would "not at this late date inquire
into the Union's showing of majority status." Id. The Eleventh Circuit enforced
the Board's decision, stating that the Board's application of the 10(b) limitations
period was reasonable and not erroneous. See NLRB v. Triple A Fire
Protection, Inc., 136 F.3d 727, 736-37 (11th Cir. 1998), cert. denied, 525 U.S.
1067 (1999). The court reasoned that the employer had granted 9(a) recognition
to the union and that "[i]t has long been recognized that section 10(b) prohibits
employers from waiting more than six months to attack the majority status of
union representation at the time of recognition." Id. at 736; see also Viola
Indus., 979 F.2d at 1387. It also relied on the notion established in Deklewa
that unions in the construction industry should not have less favored status than
unions outside the construction industry. See Triple A Fire Protection, 136 F.3d
at 737.

25

The Board again applied a time-bar in MFP Fire Protection, 318 N.L.R.B. at
842. There the Board refused to inquire into the union's showing of majority
status after four years had passed since the most recent agreement was executed
by the employer which voluntarily recognized the union as a 9(a)
representative. See id. This court enforced that decision, holding that the Board
did not err in applying 10(b)'s six-month limitations period to bar "the employer
from retrospectively asserting the absence of a 9(a) relationship" after such a
long period of time had passed since recognition. MFP Fire Protection, Inc. v.
NLRB, 101 F.3d 1341, 1344 (10th Cir. 1996); see also Goodless Elec., 124
F.3d at 329 (reading Board precedent to require that "when a union claims it has
attained majority status and the parties, based on that claim, agree to a Section
9(a) relationship, the employer must challenge that status within a reasonable
period of time (six months), or be bound by its agreement"). But see American
Automatic Sprinkler, 163 F.3d at 218 n.6 (allowing the party against whom the
complaint has been filed to defend itself by challenging the validity of evidence

of effective voluntary recognition despite 10(b)).6

26

In light of these decisions by the Board and this court, as well as those by the
First and Eleventh Circuit courts, we see no reason why the Board's application
of a time bar to challenges to the formation of a bargaining relationship based
on a lack of majority status is unreasonable. In each instance where the Board
properly precluded a challenge to the union's majority status in the construction
industry context, a substantially longer span of time than six months had passed
since the grant of 9(a) recognition. See, e.g., MFP Fire Protection, 318
N.L.R.B. at 842 (four years); Triple A Fire Protection, 312 N.L.R.B. at 1088
(four years); Casale Indus., 311 N.L.R.B. at 953 (six years). Likewise in this
case, even if 10(b) itself does not explicitly apply because there is no statutory
prohibition on minority recognition in the construction industry, the policy
behind 10(b) certainly applies. It is reasonable to bar a challenge to the Union's
majority status and the formation of the contract after more than three years had
passed.

27

Other facts also support the reasonableness of the Board's application of a

limitations period. Not only did Triple C enter into a collective bargaining
agreement which contained language unequivocally granting 9(a) recognition
to the Union as the exclusive bargaining representative of a majority of the
appropriate employees but it also executed a series of three additional contracts,
all of which contained language identical to the first contract. Similar to the
situation in Bryan Manufacturing, the entire foundation of Triple C's defense
against the unfair labor practice charges in this case is the Union's lack of
majority status when the original collective bargaining agreement was signed.
Cf. Bryan Mfg., 362 U.S. at 417. In fact, we think it is unreasonable to allow a
party defending against unfair labor practice charges to challenge the validity of
a collective bargaining agreement, which is perfectly lawful on its face, based
on a three-year old event, i.e., majority status recognition. Moreover, we agree
with the Union that "the application of a rule limiting the circumstances in
which an employer can challenge a union's majority status [at the time of
recognition] cannot depend on whether the union did or did not actually have
majority status." Intervenor's Br. at 10.

28

Finally, the manner in which the burdens are allocated to the collective
bargaining parties demonstrates the reasonableness of applying a period of
limitations in the construction industry. Initially, under Deklewa, we presume
that a contract formed between a union and an employer primarily engaged in
the construction industry is governed by 8(f). Once the party asserting a 9(a)
relationship demonstrates that the employer has recognized the 9(a) status of
the union, then the presumption in favor of 8(f) dies and a 9(a) relationship

exists. However, a second presumption comes into play when a 9(a)

relationship is established: Where a union has demonstrated, at least facially,
that a 9(a) relationship exists, it enjoys a presumption of majority status for the
duration of the contract or for a reasonable period. In order to reconcile these
two presumptions, we hold that if a party challenges the union's majority status
within a reasonable period of time from the date of recognition, then the burden
remains on the union to prove its majority support in accordance with the initial
8(f) presumption.7 After a reasonable period of time has passed since the 9(a)
recognition, and in keeping with the 9(a) presumption of majority status, it is
then reasonable to preclude an attack on the 9(a) relationship based on a lack of
majority support. This allocation of burdens also preserves the NLRA's goals of
uniformity and stability.
29

We hold that it was not unreasonable for the Board to bar Triple C's challenge
to the Union's majority status because a reasonable period of time had passed
since Triple C had extended 9(a) recognition, the parties were on notice that a
9(a) relationship was intendedas evidenced by the language of the contract, and
the contract is facially valid. The salutory effect of our holding furthers the
overwhelming intent of the NLRA to achieve uniformity and stabilize
bargaining relationships.
III.

30

In sum, we hold that a collective bargaining agreement may, in and of itself,

satisfy the requirement of a contemporaneous showing of majority support that
is necessary to establish the existence of a 9(a) relationship and overcome the
presumption accorded to 8(f) relationships in the construction industry. In
addition, similar to the period of limitations in 10(b) of the Act, the Board may
apply a time bar to challenges to a union's 9(a) majority status if a reasonable
period of time has passed since the employer extended recognition to the union
in a facially valid 9(a) agreement. The order of the Board is hereby
ENFORCED.

Notes:
1

Prior to the Board's decision in John Deklewa & Sons, Inc., 282 N.L.R.B. 1375
(1987), enforced sub nom. International Ass'n of Bridge, Structural &
Ornamental Iron Workers v. NLRB, 843 F.2d 770 (3d Cir. 1988), an 8(f)
agreement could be repudiated by either party at any time for any reason. See
id. at 1378. Likewise, an 8(f) relationship could be converted into a 9(a)

relationship at any time when the union could show that it had obtained
majority support. See id. When an 8(f) relationship converted into a 9(a)
relationship, "an employer [was obligated] . . . 'to recognize and bargain with
the union as the employees' exclusive representative.'" Id. at 1379 (quoting
Davis Indus., 232 N.L.R.B. 946, 952 (1977)).
2

A close reading of American Automatic Sprinkler reveals that its holding does
not contradict ours. The Fourth Circuit held that the employer's voluntary
recognition was not enough to establish a 9(a) relationship. The court requires
explicit proof of actual majority status presented contemporaneously with the
union's demand and the employer's voluntary recognition. See American
Automatic Sprinkler, 163 F.3d at 221-22. There are two important differences
between that case and this one.
First, unlike the collective bargaining agreement in this case, the agreement in
American Automatic Sprinkler did not recite that 9(a) recognition was based on
any showing of majority support. See id. at 221-22. Our decision today
determines that an agreement containing some offer of proof or
acknowledgment of a showing of majority status satisfies the contemporaneous
showing requirement. In other words, if the agreement represents that 9(a)
recognition is based on a showing of majority support, that acknowledgment
satisfies the contemporaneous showing requirement sufficient to overcome the
8(f) presumption, so long as the other 9(a) requirements are met. Nothing in the
Fourth Circuit decision undermines that determination. Moreover, by requiring
at least a recitation of an offer of proof of majority support or an
acknowledgment of a showing of majority status, our decision today does not
reduce the contemporaneous showing requirement to a "hollow form," a
concern expressed by the Fourth Circuit. Id. at 222.
Second, American Automatic Sprinkler is also distinguishable based on the
type of evidence presented to establish majority support. The union in that case
attempted to use as proof of majority status the union membership count
determined by the union security clause. Because Deklewa specifically rejected
this type of evidence as proof of majority support, the Fourth Circuit correctly
held that it could not count as a contemporaneous showing of majority support.
See id. at 220. There is no contention in this case that majority support was
unlawfully established by a union security clause.

Despite our view that the use of 9(a) in recognition agreements is advisable and
assists in carrying the burden of overcoming the 8(f) presumption, we do not
disagree with the Third Circuit's determination that reference to 9(a) is not
necessary so long as the remainder of the recognition language conclusively
shows that the parties intended 9(a) to apply. See Sheet Metal Workers', 201

F.3d at 242.
4

Triple C argues that the Board is applying the pre-Deklewa conversion doctrine
if a 9(a) relationship can be established without extrinsic evidence
contemporaneously showing majority support. We disagree. Under the preDeklewa conversion doctrine, an 8(f) relationship automatically would convert
into a 9(a) relationship when the union obtained a majority of employees.
According to the record in this case, conversion would have occurred in
September 1993. However, under Member Hurtgen's analysis, even if Triple C
could challenge the Union's majority status when the contract was first signed
in 1993, we think that a valid 9(a) relationship was formed in July 1994 when
Triple C executed a new contract which contained the 9(a) recognition
language stating that Triple C had recognized the Union as the exclusive 9(a)
representative based on a clear showing of majority support. See R., Vol. II,
Resp. 2 at 2. Because a majority of Triple C's employees had signed
authorization cards when Triple C signed the new contract in 1994, Triple C
cannot argue that there was no majority support.

Section 10(b) reads in pertinent part: "[N]o complaint shall issue based upon
any unfair labor practice occurring more than six months prior to the filing of
the charge with the Board and the service of a copy thereof upon the person
against whom such charge is made . . . ." 29 U.S.C. 160(b).

Although the Fourth Circuit notes in American Automatic Sprinkler, 163 F.3d
at 218 n.6, that its analysis of whether 10(b) applies to construction industry
cases is contrary to this court's decision in MFP Fire Protection, 101 F.3d at
1343-44, and the Eleventh Circuit's decision in Triple A Fire Protection, 136
F.3d at 736-77, we believe the Fourth Circuit's decision is distinguishable on
other grounds. See infra note 2.

We note that a time limitation such as the one in 10(b) is unique to both the
employer and the employee. Thus, it does not begin to run until the parties have
notice of the alleged illegal 9(a) recognition (or other alleged illegal action).
For example, with respect to employees, 10(b)'s six-month limitations period
would not begin to run until at least one statutory employee was hired or
otherwise had notice of the employer's illegal actions. See Texas World Serv.
Co. v. NLRB, 928 F.2d 1426, 1437 (5th Cir. 1991); R.J.E. Leasing Corp., 262
N.L.R.B. 373, 381-82 (1982). This accrual rule preserves the Act's goal of
employee free choice.